There is another class of patent holders that can't be sued, as the Wall Street Journal points out today in "Critics Take Aim at California's Patent Shield" .
These are state entities that hold patents, such as the University of California. They are protected by the doctrine of sovereign immunity, which protects them from legal liability. They can sue but can't be sued. As the Church Lady used to say, "Isn't that special?"
In a case brought by Biomedical Patent Management against the state of California for non payment of royalties on a patented invention, the trial court judge criticized the fact that the U. of C. can reap the benefits of the patent system without the possibility of liability for infringement. Private universities don't have this advantage.
A representative of a software industry association says that these state entitites are competitors against private firms.
Unfortunately, the discussion has degenerated into parsing the 11th amendment and the question of whether states can be sued.
The judge in the biomedical case could have struck a blow for freedom by pointing out that Biomedical's patent violated the liberty of competing inventors, while potentially raising prices to consumers.
In the meantime the U. of C. and other state entities will go on hiding behind the doctrine of sovereign immunity. As Mel Brooks put it, "It's good to be the King." Or at least to hide behind his throne.
